In re Selena R.
Matter of Selena R. v Joseph L.
2011
NY Slip Op 00719
Decided
on February 8, 2011
Appellate
Division, First Department
Published
by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This
opinion is uncorrected and subject to revision before publication in the
Official Reports.
Decided
on February 8, 2011
Saxe, J.P., Friedman, McGuire, Abdus-Salaam,
Román, JJ.
4006
[*1]In
Selena R., and Another, Children Under the Age of
Eighteen Years, etc., Angela T., Respondent,
and
Joseph
L., Respondent-Appellant, The Administration for
Children's Services, Petitioner-Respondent.
George E. Reed, Jr.,
Michael
A. Cardozo, Corporation Counsel,
A. Brenner of counsel), for respondent.
Tamara
A. Steckler, The Legal Aid
Society,
Egger of counsel), attorney for the children.
Order
of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or
about March 31, 2009, which, after a fact-finding determination that respondent
father sexually abused his son, Tyler T., derivatively abused Selena R., the
daughter of respondent mother Angela T., and neglected both children, inter
alia, released the children to the custody of respondent mother under the
strict supervision of petitioner ACS for a period of 12 months and ordered that
the father have no contact with Tyler T. without application to the Family
Court and no contact at all with Selena R., unanimously modified, on the law,
so as to vacate the finding of neglect based upon the claim of excessive
corporal punishment, and otherwise affirmed, without costs.
Corroboration
of the victim's out-of-court statements of sexual abuse by respondent was
provided by the testimony of a social worker that the children's behavior,
including age-inappropriate knowledge of ejaculation by the four-year-old boy
and other sexual behavior manifested verbally, in activities with drawings, and
in aggressive outbursts by both children, was symptomatic of sexual abuse (see
Matter of Nicole V., 71 NY2d 112, 117-118 [1987]; Matter of Shirley C.-M., 59
AD3d 360 [2009]).
However,
the testimony offered in support of the claim that respondent inflicted
excessive [*2]corporal punishment on the children
failed to establish by a preponderance of the evidence the necessary elements
of the charge (see Nicholson v Scoppetta, 3 NY3d 357,
368 [2004]).
THIS
CONSTITUTES THE DECISION AND ORDER
OF
THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:
FEBRUARY 8, 2011
CLERK